The battle between the city of St. Augustine and Donna and Scott Wendler, the couple who wanted to bring an 80-room hotel to King Street, has taken a new turn.

Advantage, Wendlers.

In a unanimous opinion last month, Florida’s 5th District Court of Appeal gave the Wendlers a green light to litigate their property rights claim against the City of St. Augustine, reversing an earlier decision by Circuit Judge J. Michael Traynor.

Traynor had dismissed a property rights lawsuit the Wendlers filed against the city after they were denied permits to demolish seven homes they own on King and Oveido streets to build the hotel.

The Wendlers, citing economic hardship, claimed that the city’s denial had “inordinately burdened” their property. The city filed a motion to dismiss, arguing that the complaint was filed too late, and Traynor agreed.

After Traynor dismissed the lawsuit, the Wendlers appealed.

The appellate court rejected the city’s arguments and found that the impact of the amendment to the ordinance was not “readily ascertainable” in 2005, and would only become so when the city denied the Wendlers’ 2007 request.

“Naturally, I’m very pleased with what these justices decided,” Wendler said last week from her King Street office, which is filled with colorful, original paintings by rock musician Marty Balin of Jefferson Airplane, a personal friend. “This decision sends a message to the city, and it’s a momentous victory for property rights.”

Between 1998 and 2006, the Wendlers acquired eight adjacent properties containing seven residential structures built between 1910 and 1930. Donna Wendler said their dream was to redevelop the assembled properties into a boutique hotel, paying homage to the turn-of-the-century structures built by Henry Flagler.

Hoping their vision would become a part of a revitalized western entry corridor, they applied to the city for demolition permits in the fall of 2007.

But in December that year, the city’s Historic Architectural Review Board denied the permits, and essentially the hotel, on historic preservation grounds, saying demolition of the buildings would be detrimental to the historic and architectural character of St. Augustine.

The homes are being used as apartment buildings, mostly rented by Flagler College students. But Wendler said that use is a losing proposition due to increased taxes, rising insurance rates and constant upkeep of the aging structures.

“We’re losing a lot of money on them, thousands of dollars in deficit each month,” Wendler said. “There’s really no way to make them into a profitable use of the property. We really thought the hotel, which was always our plan, was a great solution.”

The hotel would not have just been directed at tourists, but would also have been a meeting place for the community, focusing on the arts, she said.

“We always had a vision of combining hospitality with art and music,” she said. “I love St. Augustine. The city’s vision and comprehensive plan and my own were, I thought, in harmony with each other. Never in my wildest dreams did I see myself where I am now, fighting the city.”

Seeking millions

The Wendlers seek $3.4 million in damages — using the Bert J. Harris Jr. Private Property Protection Act — for “inordinate burdens” they incurred as a result of the city’s denial of their demolition permits.

“What the city has done has made me an indentured servant to these properties,” Wendler said. “What this amounts to is what’s called ‘regulatory taking’ of property.”

The state enacted the Harris Act in 1995, creating a new cause of action for aggrieved property owners. If a property owner could demonstrate that a governmental action “inordinately burdens” their property, they would be entitled to some form of compensation.

Wendler, 53, said she researched the demolition applications made to the city over the past 10 years and said only seven of the 162 applications were denied indefinitely.

“Of course, all seven were mine,” she said. “Honestly, I don’t understand it.”

The Wendlers’ attorney, Andrew Brigham of the Brigham Property Rights Law Firm, called it a triumph in “a war that’s far from over.”

“The Wendlers have obtained a substantial victory for themselves and for property owners throughout the state of Florida,” Brigham said. “If the appellate court had not reversed, the city would have essentially secured immunity from any and all Harris Act claims made after 2005 regarding denial of any request for demolition, remodeling, or relocation of buildings within its historic districts.”

What’s next

Brigham said the Wendlers will now return to circuit court, where they must argue the inordinate burden essential to the Harris claim. Assuming the circuit judge agrees with the Wendlers, their case would then be tried before a jury.

City Attorney Ron Brown said the city has two choices after the reversal of Traynor’s decision.

“The first option is to go back to trial court,” Brown said. “The second option is that we could appeal this appellate verdict and take it up to the Florida Supreme Court.”

Brown said he did not know which option the city would choose.

No matter what happens in court, Wendler said, the dream of the hotel is likely dead.

“Honestly, we’re not in the position we were in five years ago, financially or otherwise,” she said. “I’m not a developer, I’m not a big-time hotelier. I’m a wife, a mother and a grandmother. Everything we have we’ve worked very hard for. We thought we had something wonderful to offer the city. We had a viable project that would have enhanced downtown St. Augustine and would have provided jobs. But I don’t honestly see how it could be done if the city continues to stonewall it.”

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Boy, I sure do like those buildings. Tragic to know they're currently entrusted to someone who thinks so little of them. Will definitely be a sad day for us all if they're taken down to put up another stupid hotel, "boutique" or not.

"What the city has done has made me an indentured servant to these properties,” Wendler said."

Well, you bought seven historic structures in the oldest city. Your plan, to demolish them, turned into a fight seeing as there's a whole lotta people who think your plan is rotten. Whatever 'indenture' you felt obliged to was part of the natural business risk you assumed when you bought several aged, historic properties on the basis of your hopes for a usage change that was far, far from a guarantee.

She laments the fact that of the 162 applications for demolition, only her 7 were denied indefinitely but of those 162 applications, how many represented a lone individual who scarfed up seven congruent historic properties to be destroyed? My guess, the seven that were denied. Hers.

I really hope Mr. Brown is given the go to keep up this fight and the city eventually prevails. Probably collaterally attack the Harris claim on the grounds of established municipal authority over selective architectural review.

If not, if Wendler is able to bulldoze those houses at her whim to put up another dumb hotel (whether she does it now or later), the idea of maintaining a Historic Architecture standard in certain areas is toast. May as well put a big, bright neon Dave and Busters right on St. George Street.

I'm all for private property rights but I'm also all for understanding what you're buying into when your business interests venture into historically/environmentally sensitive areas; that your 'rights' aren't quite the same in those places where credible preservationist sentiments (and regulations) are in play.

I'm all for private property rights but I'm also all for understanding what you're buying into when your business interests venture into historically/environmentally sensitive areas; that your 'rights' aren't quite the same in those places where credible preservationist sentiments (and regulations) are in play.
~~~~~
AGREE!!!

City reminds you of Alice in Wonderland. The Easter Parade with Boles in his white carriage LMAO you have really gotten into your role. And let's not forget about the college. Jeeze you need to knock down a block or two for some tennis courts? Go ahead they were just old crap anyway! You idiots need a spanking and I hope you get one. The historical review board commonly known among locals as the hysterical review board. Idiots.

I don't understand the property owners in this town always complaining that they are losing so much money on their properties. You are putting money into something that you own and has value. Not only that, but your tenants are paying for most of it. You are not losing anything unless you sell the property for much less than you paid for it. The people losing money on a monthly basis are the renters!!!

“We’re losing a lot of money on them, thousands of dollars in deficit each month." Wow, investment of thousands of dollars on 7 properties in the heart of St. Augustine. What a terrible burden! Again, you aren't losing that money (although not keeping the property in a livable condition probably isn't good for the value of the property). If the tenants weren't paying for the investment for you, it would be hundreds of thousands of dollars each month.

And as harvesteagle says, busted on their old claim that the buildings were too far in disrepair and have to be demolished. How many units do these buildings have? Losing 14-28 affordable apartments is not good for the community.